AuthorTitleCitationSummaryYearKey Terms
Francesco Francioni Beyond State Sovereignty: the Protection of Cultural Heritage as a Shared Interest of Humanity 25 Michigan Journal of International Law 1209 (Summer 2004) Introduction. 1209 I. Cultural Heritage and Human Rights. 1212 II. Culture and International Responsibility. 1215 III. International Law and Cultural Diversity. 1220 A. Intangible Cultural Heritage. 1222 B. Diversity of Cultural Contents and Artistic Expressions. 1226 2004  
Anna Gelpern Building a Better Seating Chart for Sovereign Restructurings 53 Emory Law Journal 1115 (2004) Introduction: The Odd World of Sovereign Debt. 1115 I. Mining the Bankruptcy Analogy. 1119 II. The Divine Right of Kings. 1124 III. A Foggy Status Quo. 1126 A. Not So Sacred Livestock. 1128 B. Tension at the Top. 1130 C. The Pari Passu Snafu. 1131 D. A New Frontier. 1137 IV. Priority for Priorities?. 1138 V. Elusive Solutions. 1143 Conclusions.... 2004  
Jeffrey M. Hirsch Can Congress Use its War Powers to Protect Military Employees from State Sovereign Immunity? 34 Seton Hall Law Review 999 (2004) The need to attract and keep soldiers has never been greater, yet that necessity is threatened by the Supreme Court's burgeoning state sovereign immunity jurisprudence. Congress has sought to promote military service in the Uniformed Services Employment and Reemployment Rights Act (USERRA), which protects soldiers from adverse employment actions... 2004  
Edward T. Hayes Changing Notions of Sovereignty and Federalism in the International Economic System: a Reassessment of Wto Regulation of Federal States and the Regional and Local Governments Within Their Territories 25 Northwestern Journal of International Law and Business Bus. 1 (Fall 2004) On November 14, 2001 the 142 Members of the World Trade Organization (WTO) successfully concluded their 4 Ministerial Conference in Doha, Qatar by agreeing to launch a new round of trade negotiations. The Doha Ministerial Declaration provides a mandate for negotiations on twenty-one subjects, including topics already under negotiation and new... 2004  
Beth Garrison Children Are Not Second Class Citizens: Can Parents Stop Public Schools from Treating Their Children like Guinea Pigs? 39 Valparaiso University Law Review 147 (Fall, 2004) Dear Senator Grassley: I am writing you to express my frustration with the present condition of our education system .. Imagine . an area surrounded by green lawns, sidewalks, and rows of one indistinguishable house followed by another. In this suburbia-like neighborhood live the Wilsons. The Wilsons are a traditional, hardworking, middle-class... 2004  
Jaykant M. Patidar Citizenship and the Treatment of American Citizen Terrorists in the United States 42 Brandeis Law Journal 805 (Summer, 2004) An American citizen, also a suspected terrorist, is captured on a battlefield in Afghanistan and then taken to the United States where he is charged in the civilian court system. A second American is also captured in Afghanistan; however, he is not formally charged, but instead placed into military custody, and denied contact with an attorney.... 2004  
Paul M. Rashkind Confrontation, Sovereignty, Seizures Top Court Action 19-SUM Criminal Justice 40 (Summer, 2004) The third quarter of the Supreme Court's 2003-04 Term produced a balanced docket--nine decisions and nine new cert grants relating to criminal cases. In keeping with recent Terms, the cases are spread over a broad spectrum. The decided cases present significant developments in three areas of the law. First, the Court overruled its own precedent... 2004  
  Constitutional Law -- State Sovereign Immunity -- Fifth Circuit Bars Challenge to Statutes' Constitutionality in Interlocutory Appeal Reviewing Denial of State Sovereign Immunity. -- Mccarthy ex Rel. Travis v. Hawkins, 381 F.3d 407 (5th Cir. 2004). 118 Harvard Law Review 786 (December, 2004) Ever since the concept of state sovereign immunity entered the constitutional realm, courts have struggled to balance the sovereign interests of the State with the supremacy of federal law. The doctrine of Ex parte Young carves an exception out of Eleventh Amendment jurisprudence, allowing prospective relief against a state official engaged in... 2004  
Edward J. Everitt Constitutional Law--eleventh Amendment--abrogation of States' Sovereign Immunity in Title Ii of the Americans with Disabilities Act Held a Valid Exercise of Congress's Fourteenth Amendment Section Five Power 74 Mississippi Law Journal 253 (Fall 2004) Congress passed the Americans with Disabilities Act of 1990 (ADA) in order to remedy discrimination against disabled persons. Respondents George Lane and Beverly Jones, both disabled, filed suit in federal court against the State of Tennessee for alleged violations of Title II of the ADA. Lane alleged he was unable to answer a criminal charge in a... 2004  
Michael J. Mano Contemporary Visions of the Early Federalist Ideology of James Madison: an Analysis of the United States Supreme Court's Treatment of the Federalist No. 39 16 Washington University Journal of Law and Policy 257 (2004) The theory of New Federalism was one of the dominant themes guiding Republican politics throughout the 1980s and 1990s. In retrospect, it should have come as no surprise that four of the Justices appointed to the Supreme Court by Presidents Reagan and George H.W. Bush have proven to be rigid advocates of state sovereignty. Headed by Chief Justice... 2004  
Darryll M. Halcomb Lewis , James R. Jones Culture Shock in the Workplace: the Legal Treatment of Cultural Behavior under Title Vii 29 Oklahoma City University Law Review 139 (Spring, 2004) [P]ermanent resident alien[s], married to an American citizen, and [their] children will be native-born American citizens. But that first generation has the greatest adjustments to make to their new country. Their unfamiliarity with America makes them the most vulnerable to exploitation and discriminatory treatment. They, of course, have the same... 2004  
David J. D'Addio Dual Sovereignty and the Sixth Amendment Right to Counsel 113 Yale Law Journal 1991 (June, 2004) In Texas v. Cobb, the Supreme Court affirmed that the Sixth Amendment right to counsel is offense specific and attaches only to charged offenses. Prior to Cobb, lower courts had created an exception to this rule, holding that the right to counsel also attached to any additional uncharged crimes that were factually related to a specific charged... 2004  
Jana L. Tibben Family Leave Policies Trump States' Rights: Nevada Department of Human Resources v. Hibbs and its Impact on Sovereign Immunity Jurisprudence 37 John Marshall Law Review 599 (Winter 2004) In late May 2003, the top headline of the Chicago Tribune proclaimed, Court bolsters family leave: Justices reject stereotypes; say states not exempt from U.S. law. The headline referred to the United States Supreme Court case Nevada Department of Human Resources v. Hibbs, which held that states could be sued in federal court for money damages... 2004  
Michael P. Van Alstine Federal Common Law in an Age of Treaties 89 Cornell Law Review 892 (May, 2004) Introduction. 893 I. The Force and Significance of the Modern Treaty Power. 900 A. Constitutional Background and Text: The Role of Treaties as Directly Applicable Federal Law. 900 1. Federal Power, Foreign Affairs, and Treaties. 900 2. Treaties and the Self-Execution Doctrine. 904 B. Responding to the Revisionist Challenge to Self-Execution. 907 1.... 2004  
Joseph M. West Federal Fraud Prosecutions of Schemes to Defraud Foreign Sovereigns of Import Taxes 50 Wayne Law Review 1061 (Fall 2004) This note addresses the question of whether the United States can utilize 18 U.S.C. section 1343 to criminally prosecute defendants who use interstate wires in furtherance of a scheme to defraud a foreign government of import taxes. The United States Supreme Court recently granted certiorari to resolve a circuit split on the issue. In 1996, the... 2004  
Curtis A. Bradley Federalism and the Treaty Power 98 American Society of International Law Proceedings 341 (March 31-April 3, 2004) Article II of the Constitution gives the president the power, with the advice and consent of two-thirds of the Senate, to make treaties. The supremacy clause in Article VI of the Constitution provides that treaties made under the authority of the United States shall be the supreme law of the land and shall bind state judges. Thus, like federal... 2004  
David B. Kopel , Paul Gallant , Joanne D. Eisen Firearms Possession by "Non-state Actors": the Question of Sovereignty 8 Texas Review of Law and Politics 373 (Spring 2004) I. Introduction. 374 II. Ancient Greece. 377 III. Mainland Asia. 381 A. Cambodia. 382 B. China. 384 C. Japan. 385 IV. The Pacific. 386 A. East Timor. 386 B. Bougainville. 394 V. Africa. 403 A. Niger. 403 B. Angola. 404 C. Zimbabwe. 405 D. Uganda. 413 VI. Europe. 422 A. The Warsaw Pact. 422 1. Afghanistan. 422 2. 1989 Revolutions. 423 3. Romania.... 2004  
Maxwell O. Chibundu For God, for Country, for Universalism: Sovereignty as Solidarity in Our Age of Terror 56 Florida Law Review 883 (December, 2004) On September 11, 2001, three hijacked jet airliners deliberately were crashed into buildings in New York City and Washington, D.C. A fourth aircraft, apparently intended for the same purpose, crashed into a field in Pennsylvania. The lives of approximately three thousand persons were snuffed out in a matter of barely over an hour, and another two... 2004  
Gary L. McDowell , Stephen B. Presser Foreword: Human Rights, the Rule of Law, and National Sovereignty 2 Northwestern Journal of International Human Rights Rts. 1 (Spring, 2004) On July 23, 2000, in London, England, we were the convenors of a conference jointly sponsored by the University of London's Institutes of Advanced Legal Studies, Historical Research, and United States Studies and Northwestern University School of Law, made possible by a grant from the Searle Fund. The title of the conference was At Century's Dawn:... 2004  
Katrina L. Fischer Harnessing the Treaty Power in Support of Environmental Regulation of Activities That Don't "Substantially Affect Interstate Commerce": Recognizing the Realities of the New Federalism 22 Virginia Environmental Law Journal 167 (2004) I. Introduction. 167 II: The Scope of the Treaty Power Eighty Years after Missouri v. Holland--Ill Understood and Ripe for Narrowing. 177 III: Adducing a Limiting Principle--A Treaty Power Framework that Accommodates the Environment. 187 IV: Applying the Proposed Treaty Power Framework. 201 V. Conclusion. 213 2004  
  Hood's in Rem Exception to State Sovereign Immunity in Bankruptcy: a Personal Jurisdiction Time Warp 24 Bankruptcy Law Letter Letter 1 (7/1/2004) As predicted in the March 2003 issue of the Bankruptcy Law Letter, critiquing the Sixth Circuit's state sovereign immunity decision in Hood v. Tennessee Student Assistance Corp., the circuit split created by the Sixth Circuit prompted the Supreme Court to grant[] certiorari to determine whether the Bankruptcy] Clause grants Congress the authority... 2004  
Major Alison Martin How Far Can They Go: Should Commanders Be Able to Treat Hotel Rooms like an Extension of the Barracks for Search and Seizure Purposes? 2004-JUN Army Lawyer Law. 1 (June, 2004) A military barracks or berthing area may be a foxhole in a remote training or combat area or it may be the almost mythical condominiums referred to in recruiting brochures and motion pictures. It may be represented by elaborate areas of individual room configuration designed to accord to the service member a measure of personal privacy and... 2004  
Connie de la Vega Human Rights and Trade: Inconsistent Application of Treaty Law in the United States 9 UCLA Journal of International Law and Foreign Affairs Aff. 1 (Spring-Summer 2004) Over the past sixty years a dichotomy has developed in the United States' involvement in international agreements, subjecting treaties based on economic concerns to a different ratification mechanism than those relating to human rights abuses. That dichotomy has resulted from actions by all three branches of the federal government that increasingly... 2004  
Emily A. Benfer In the Best Interests of the Child? : an International Human Rights Analysis of the Treatment of Unaccompanied Minors in Australia and the United States 14 Indiana International & Comparative Law Review 729 (2004) [M]ankind owes to the child the best it has to give. A young boy in solitary confinement lay motionlessly on the concrete. His face was red, as though he had been crying. In order to walk, he had to be physically supported by guards. Horrified by being shackled and transferred to a high-security prison, he had not eaten for five days. The child... 2004  
Haegyung Cho Incarcerated Women and Abuse: the Crime Connection and the Lack of Treatment in Correctional Facilities 14 Southern California Review of Law and Women's Studies 137 (Fall, 2004) Ms. Ellen Richardson is incarcerated at Valley State Prison for Women in Chowchilla, California. There are no domestic violence support groups in the prison to help her cope with her abusive past and [she is] basically left to deal with [her] pain as part of [her] sentence. As she articulates, none of the women leaving this prison would be... 2004  
Stephen J. Choi , G. Mitu Gulati Innovation in Boilerplate Contracts: an Empirical Examination of Sovereign Bonds 53 Emory Law Journal 929 (2004) Network externalities may lead contracting parties to stay with a standardized term despite preferences for another term. Using a dataset of sovereign bond offerings from 1995 to early 2004, we test the importance of standardization for the modification provisions relating to payment terms. We provide evidence that (1) standardization may lead... 2004  
Katherine Florey Insufficiently Jurisdictional: the Case Against Treating State Sovereign Immunity as an Article Iii Doctrine 92 California Law Review 1375 (October, 2004) Introduction. 1377 I. The Jurisdictional Characterization of State Sovereign Immunity Doctrine. 1384 A. An Overview of State Sovereign Immunity's Historical Origins. 1385 B. Three Arguments for the Subject Matter Jurisdiction Theory of Sovereign Immunity. 1389 1. The Eleventh Amendment Explanation for Sovereign Immunity's Jurisdictional Status.... 2004  
Katherine Florey Insufficiently Jurisdictional: the Case Against Treating State Sovereign Immunity as an Article Iii Doctrine 92 California Law Review 1375 (October, 2004) Introduction. 1377 I. The Jurisdictional Characterization of State Sovereign Immunity Doctrine. 1384 A. An Overview of State Sovereign Immunity's Historical Origins. 1385 B. Three Arguments for the Subject Matter Jurisdiction Theory of Sovereign Immunity. 1389 1. The Eleventh Amendment Explanation for Sovereign Immunity's Jurisdictional Status.... 2004  
Thomas H. Lee International Law, International Relations Theory, and Preemptive War: the Vitality of Sovereign Equality Today 67-AUT Law and Contemporary Problems 147 (Autumn 2004) The norm of sovereign equality in international law is so resolutely canonical that its precise meaning, origins, and justifications are rarely examined. Whatever the general merits of the norm, its retention seems fairly open to question when one sovereign state appears supremely unequal among 191 sovereign states in terms of military power. The... 2004  
T. Alexander Aleinikoff International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate 98 American Journal of International Law 91 (January, 2004) The preceding contributions to this Agora investigate the discernible trend in Supreme Court decisions of citing international legal materials in support of a conclusion about domestic constitutional law. Discussion of this rather limited use of international lawfar short of the notion that [i]nternational law is part of our law implicates a... 2004  
James E. Pfander Judicial Ping-pong 92 Illinois Bar Journal 652 (December, 2004) Credit the Illinois General Assembly with ending a game of federal-state judicial ping-pong last spring. The game began when the U.S. Court of Appeals for the Seventh Circuit cited sovereign immunity in refusing to allow discrimination claims against the state of Illinois in federal court. But the seventh circuit qualified its decision by noting... 2004  
Julia E. Sullivan Legal Analysis of the Treaty Violations That Resulted in the Nez Perce War of 1877 40 Idaho Law Review 657 (2004) In 1805, the Nez Perce Tribe of Indians befriended the first representatives of the U.S. government ever to travel through their country-Meriweather Lewis, William Clark, and the other members of the U.S. Corps of Discovery. The Nez Perce fed the Americans, who were nearly starved after a wretched trip through the Bitterroot Mountains, and,... 2004  
Angela C. Blandino Louisiana's Treatment of Tax-exempt Entities: Contesting Assessments on Exempt Property 13-JAN Journal of Multistate Taxation and Incentives 24 (January, 2004) In Windsor Housing, the Louisiana First Circuit Court of Appeal has read into the state's statutory scheme a requirement that a nonprofit entity pay the entirety of a wrongfully assessed ad valorem tax under protest by December 31 of a given year in order to preserve its right to challenge the legality of the tax. The thought of Louisiana... 2004  
Bradley Karkkainen Marine Ecosystem Management & a "Post-sovereign" Transboundary Governance 6 San Diego International Law Journal 113 (Fall 2004) I. Introduction. 113 II. Structural Limitations of Public International Law. 114 III. Scale Mismatches. 116 IV. Capacity Mismatches: From Regulation by Fixed Rule to Adaptive Ecosystem Management. 120 V. Leading Cases. 126 A. The Chesapeake Bay. 126 B. The U.S.-Canadian Great Lakes. 130 C. The Baltic Sea. 133 VI. Toward a Global Support Structure... 2004  
Susan Hall Dudley Medical Treatment for Asian Immigrant Children--does Mother Know Best? 92 Georgetown Law Journal 1287 (August, 2004) Faith in the curative power of Western medicine is deeply rooted in American culture. This faith is reflected in our legal system, and becomes apparent when courts must make judgments about the relative value of Western techniques as compared with remedies stemming from other cultural traditions. An increasing percentage of Americans were not... 2004  
  Native American Sovereignty on Trial: a Handbook with Cases, Law, and Documents. By Bryan H. Wildenthal. Santa Barbara, Ca: Abc-clio Press, 2003. Pg. 359. $55.00 Hardback. 44 Natural Resources Journal 924 (Summer 2004) From 1830 to 1836, George Caitlin traveled around the western United States to paint plains Indians. Caitlin, a lawyer turned painter, sought to preserve the customs and appearance of the Indians through his work. He idealized the Indians' relationship with nature and hoped that his Indian Gallery would help defend and preserve their way of... 2004  
Ana Maria Merico-Stephens Of Federalism, Human Rights, and the Holland Caveat: Congressional Power to Implement Treaties 25 Michigan Journal of International Law 265 (Winter 2004) Introduction. 266 I. The International Covenant on Civil and Political Rights, VAWA, and Implementing Legislation. 275 A . The Recognition of Gender-Motivated Violence and Sex Discrimination as an International Human Rights Problem. 275 1. Introduction. 275 2. The Role of the International Covenant on Civil and Political Rights. 280 3.... 2004  
Y. Frank Chiang One-china Policy and Taiwan 28 Fordham International Law Journal L.J. 1 (December, 2004) In April 2003, the severe acute respiratory syndrome (SARS) disease spread to the island of Taiwan. Not being a member of the World Health Organization (WHO), Taiwan could not receive information provided by the WHO for preventing the spread of the SARS diseases. Earlier, the government of the Republic of China (R.O.C.) in Taiwan applied to... 2004  
Francisco Forrest Martin Our Constitution as Federal Treaty: a New Theory of United States Constitutional Construction Based on an Originalist Understanding for Addressing a New World 31 Hastings Constitutional Law Quarterly 269 (Spring 2004) This Article argues that the Constitution is a federal treaty based on an originalist understanding. As a treaty, the Constitution must be construed in conformity with the United States' customary international legal obligations, according to the international law governing treaties. Furthermore, these customary international legal norms often will... 2004  
Jordan J. Paust Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions 79 Notre Dame Law Review 1335 (July, 2004) Introduction. 1335 I. Some Erroneous Post-9/11 Claims. 1336 A. 9/11's Supposed Radical Transformation of Legal Restraints. 1336 B. Supposed War Against al Qaeda and International Terrorism . 1340 C. Supposed Permissibility of Preemptive Self-Defense. 1343 D. Supposed Legal No-Man's Lands . 1346 E. Supposed Unprotected Persons. 1350 1. The... 2004  
Mariano-Florentino Cuellar Reflections on Sovereignty and Collective Security 40 Stanford Journal of International Law 211 (Summer 2004) When the guns fell silent at the end of World War II, the United States and its allies supported the creation of an institutional arrangement that was supposed to make unprecedented contributions to collective international security. The United Nations Charter (Charter) was central to that arrangement. The Charter assigned a preeminent role to... 2004  
Professor Charles J. Ogletree, Jr. , Harvard Law School, 516 Hauser Hall, Cambridge, MA 02138, (617) 495-5097, Fax (617) 495-1110, ogletree@law.harvard.edu Reflections on the First Half-century of Brown v. Board of Education-- Part 3 28-JUL Champion 24 (July, 2004) In May 1954, the United States Supreme Court, in Brown v. Board of Education, declared that separate but equal had no place in public education. The decision did allow the states to desegregate at their own chosen speed. When the Jim Crow system fell, it did not fall in one fell swoop. The promise of Brown, still largely to be fulfilled, was in... 2004  
Jared Wessel Relational Contract Theory and Treaty Interpretation: End-game Treaties v. Dynamic Obligations 60 New York University Annual Survey of American Law 149 (2004) The conventional, and generally followed, wisdom in international law regarding treaty interpretation is clear; all treaties, regardless of their subject matter, are governed by the same rules. The Vienna Convention on the Law of Treaties (Vienna Convention) defines the interpretive norms and rules for all treaties, be it commerce, navigation,... 2004  
Matthew D. Marden Return to Europe? The Czech Republic and the Eu's Influence on its Treatment of Roma 37 Vanderbilt Journal of Transnational Law 1181 (October, 2004) The Czech Republic has faced much criticism in the past fifteen years for the treatment of its Romani minority community. The European Union has successfully applied informal, non-legal means of pressuring the Czech Republic into making some changes necessary to improve living conditions for Roma. With the Czech Republic's recent accession to the... 2004  
Dr. Parvez Hassan , Azim Azfar Securing Environmental Rights Through Public Interest Litigation in South Asia 22 Virginia Environmental Law Journal 215 (2004) I. Introduction. 216 II. Environmental Challenges and Executive Failure in South Asia. 218 A. The Nature of the Challenge. 218 B. Legislative Structures: An Illusion of Progress. 220 III. The Story of Public Interest Litigation in South Asia. 223 A. Public Interest Litigation and Environmental Concerns. 223 B. The Origins of Public Interest... 2004  
Sanford Levinson Shards of Citizenship, Shards of Sovereignty: on the Continued Usefulness of an Old Vocabulary 21 Constitutional Commentary 601 (Summer 2004) I agreed to review this excellent book some two years ago, shortly after it came out; the pressure of other commitments led me to take much longer completing my task than I had intended. However, almost all clouds have silver linings; my delay has enabled me, upon rereading the book, both to see new implications in 2004 that I might have missed in... 2004  
Franklin G. Snyder Sharing Sovereignty: Non-state Associations and the Limits of State Power 54 American University Law Review 365 (December, 2004) Introduction. 366 I. Reconsidering the Role of the State and Other Associations in Defining Community. 370 A. The Idea of the State. 370 B. The Role of Business Enterprises. 378 C. The Problem of State Centered Analysis. 382 II. Detaching Sovereignty from the State. 384 III. Towards a More Inclusive Theory of Associations. 389 A. Pluralism. 389 B.... 2004  
Richard H. Seamon Slaying the Dying Dragon of State Sovereignty 66 University of Pittsburgh Law Review 321 (Winter 2004) [A] terrible dragon had ravaged all the country round a city of Libya, called Selena, making its lair in a marshy swamp. Its breath caused pestilence whenever it approached the town, so the people gave the monster two sheep every day to satisfy its hunger, but, when the sheep failed, a human victim was necessary and lots were drawn to determine the... 2004  
Richard L. Reinhold Some Things That Multilateral Tax Treaties Might Usefully Do 57 Tax Lawyer 661 (Spring, 2004) C1-2TABLE OF CONTENTS Page I. INTRODUCTION. 663 A. Historic International Tax Framework. 665 1. General. 665 2. Tax Treaties. 667 B. Multilateral Tax Treaties. 668 II. MULTINATIONAL SERVICE PARTNERSHIPS. 671 A. Partnerships and Tax Treaties. 671 B. Proposal Regarding Taxation of Partners of Multinational Service Partnerships. 673 III. INTERNATIONAL... 2004  
Anne-Marie Slaughter Sovereignty and Power in a Networked World Order 40 Stanford Journal of International Law 283 (Summer 2004) [T]here is a separate and critical need for programs like this one-- programs devoted to the real nitty gritty of law enforcement against international cartels, where frontline enforcers can meet one another and try to solve common practical problems. -- Former Assistant Attorney General Joel Klein, commenting on an international workshop for... 2004  
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